


//^ 






^ MEMOEIAL 

l^*** CONCERNING 



HAEVAED COLLEGE. 



1851. 






MEMOEIAL 



CONCERNING THE 



EECENT HISTORY 



CONSTITUTIONAL RIGHTS AND PRIVILEGES 



HARVARD COLLEGE; 



PRESENTED BY THE PRESIDENT AND FELLOWS 



TO THE LEGISLATURE, 
V ' / JANUARY 17, 185L 






CAMBRIDGE: 
PUBLISHED BY JOHN BARTLETT, 

BOOKSELLER TO THE UNIVERSITY. 

1851. 



MEMORIAL 



To the Honorable the House of Representatives of the Common- 
wealth of Massachusetts. 

The President and Fellows of Harvard College, having been 
notified to appear before the Legislature on the second Wednes- 
day in January, 1851, if they shall see fit, to show cause why 
a bill, proposing a new organization of the College, reported at 
the last session of the Legislature, should not be passed, would 
respectfully submit to the government of the Commonwealth 
a brief statement of such considerations, as seem to them most 
important in relation to this subject. 

In a document of this nature, which should assume the form 
of a Memorial, it is impossible to enter into a full examination 
of all the grounds, upon which the claims of Harvard College 
to the favor and fostering care of the Legislature are to be 
maintained. Little more can be done, than to suggest to those, 
who take an interest in the cause of thorough and sound educa- 
tion, some of the facts and reasons, which prove the great and 
constantly increasing advantages that have been derived from 
the organization and management of the College ; to show how 
promptly it has met the rising demand of the community for 
higher and higher attainments of the pupils, and for improve- 
ments in the methods of instruction, and how earnestly and 
successfully it has sought for larger means of usefulness, which 
are at this moment, in their immediate results, giving the rich- 
est promise of future progress ; and, finally, to indicate very 
concisely the legal argument demonstrating that the organiza- 
tion of the College, fortunate as it has proved itself to have been, 
cannot be safely, lawfully, or constitutionally overthrown, or 
essentially changed. 



The Report of the Committee, who drew up and recommended 
the bill, is clothed in terms so vague, general, and desultory, 
that it is not easy to bring its several points under any method- 
ical arrangement ; but the substance of the Report, by which 
the reasons for the bill are supposed to be sustained, may be 
divided into the three following topics. 

1. That the College, in the language of the Committee, fails 
to answer the just expectations of the people of the State. 

2. That the principal cause of this failure exists in the pres- 
ent organization of its government ; and that a remedy is to be 
found in an alteration of its Charter, enlarging the number of 
members in the Corporation, and providing for their election by 
the Legislature. 

3. That this alteration of the Charter is to be effected by a 
simple legislative act, without consulting the government of the 
College, and without its consent. 

Upon these topics we proceed to speak in their order, show- 
ing that the allegations of the Committee are incorrect in certain 
particulars, as to matters of factj unsound in principle, and haz- 
arded apparently with little knowledge of the actual state of 
the University at the present time, and of its progress for the 
last forty years ; and that their argument in support of an alter- 
ation of the Charter, by a legislative enactment alone, is at va- 
riance with established laws, and of a tendency dangerous to 
all chartered rights. 

I. It is remarkable that so grave and sweeping a charge, as 
that of failing to answer public expectation, should be advanced 
without a shadow of proof, or even an attempt to show wherein 
the failure consists. It is easy to make assertions, but on so 
large a subject, involving so many interests and such a compli- 
cation of details^ is it just to make them without a patient and 
careful investigation of the facts? The loose remarks of the 
Committee on this important head afford neither proof nor ex- 
planation; and yet, upon this very point all the complaints in 
the Report, and the demand for a change in the organization of 
the institution, necessarily depend. If the College has been suc- 
cessful, no change is required. It has not been successful, say 
the Committee, and therefore its Charter must be altered. Here 
we have an opinion unsustained by proof, and an inference 
from such an opinion, and nothing more. 



Since the Committee rest their strength upon this assertion, as 
the groundwork of the bill presented by them to the Legisla- 
ture, we are bound to examine it somewhat in detail, and ascer- 
tain how far it is supported by well known facts in the recent 
history and present condition of the University. 

Let lis inquire, in the first place, what is the public opinion 
concerning Harvard College, compared with other similar insti- 
tutions, in regard to its literary and scientific resources, the use 
that is made of them, and the quality, extent, and thoroughness 
of the education furnished to its students. Is it not true, that, 
in the judgment not only of its own graduates, but of the well 
trained scholars of other and rival institutions, it has always 
been regarded as not surpassed by any American college, for 
the amount and value of the instruction it gives? This reputa- 
tion and position we are proud to believe are not yet lost, and 
they afford presumptive evidence, of the strongest kind, that, if 
there has been any failure to satisfy reasonable expectations, it 
has not been owing to the methods of instruction, or to the kind 
and extent of the education which may there be obtained. 

This is said in no spirit of boasting, and with no desire to 
claim a superiority over other colleges, which has not a founda- 
tion in the circumstances attending the progress of Harvard 
College, and by which it is now surrounded, but merely to. 
show, that the liberality and generous confidence, with whicli 
it has been fostered in this community, have not been bestowedi 
in vain, nor without corresponding and appropriate results.. 
Being the oldest College in the country by more than half a cen- 
tury, and having larger resources than any other, it ought to. 
offer superior advantages to its students; and that it does so is 
only a proof of the discharge of an obligation, on the part of 
those to whom its government has been entrusted, which it 
Avould be discreditable not to ha¥e discharged. Nor is it pre- 
sumptuous to say, that this duty has been steadily and faith- 
fully performed, and that, while the College has ever been recog- 
nized as the leading institution of the kind in the country, it 
has sought and embraced every opportunity for improvement 
in the means and methods of instruction, introducing new 
studies as the progress of science and intelligence has required 
them, and striving at all times to elevate the standard of the 



education it conferred, as well as to adapt it to the wants and 
demands of the community. 

These statements are especially and strikingly verified in the 
history of the College during the last forty or fifty years, and it 
is not necessary to examine into the proofs of progress in remote 
periods. The question does not turn so much upon what the 
College has been, as upon what it now is, and what have been 
its achievements and tendencies in recent times. If a marked 
and decided progress can be shown to have taken place within 
forty years, if it can be shown that great advances have been 
made in intellectual culture, pecuniary resources, the increase 
of the library, scientific cabinets, apparatus, and commodious 
buildings, in the number of students and of instructors, and that 
these have been chiefly effected by the joint eflforts of the Corpo- 
ration and the able and faithful men, whom that Board, in con- 
currence with the Overseers, have placed in the College to man- 
age its internal affairs and guide the studies of its pupils; in 
short, that the education given there is in all respects as good, 
to say the least, as can be obtained at any institution in Amer- 
ica ; if these can be shown, it is believed that the Legislature 
will be slow to yield assent to the assertions of the Committee, 
that " the College has failed to answer the just expectations of 
the people of the State ; " and that " the organization is such 
that it must necessarily resist changes in opinion and modes of 
instruction." 

The number of students in a college, for a long term of years, 
may perhaps be considered as in some degree a test of its pros- 
perity or dechne, and of the piiblic favor which it enjoys. If 
we go back forty years, that is, from 1806 to 1810 inclusive, we 
shall find the average number of undergraduates annually for 
five years, as shown by the catalogues, to have been two hun- 
dred and eleven. During the Jast five years, the average num- 
ber has been two hundred and eighty; and the present year 
there are two hundred and ninety-three. For the last few years 
there has been a steady increase. This aspect of the College 
certainly does not indicate a decUne in public estimation, nor a 
failure to answer the expectations of the people. It may be 
said, that more students might be accommodated and instructed, 
but the same is true of every other college in the country. Not 



one of them has ever yet turned away a student because its halls 
or lecture-rooms were full. On the contrary, a large portion of 
them are languishing for the want of students, and efficient 
public support. Yale College is the only one, which has a larger 
number than Harvard ; and the increase in that institution is 
not to be ascribed to any novelty or changes in the modes of in- 
struction. No college has adhered more steadily to the old 
methods. 

The establishment of new colleges has also had an important 
effect on the increase of numbers in those of earlier date. Fifty 
years ago, there were twenty-five colleges in the United States, 
some of which then scarcely existed, except in name; there are 
now more than one hundred and twenty in full operation; a 
ratio of increase equal at least to that of the population. The 
field from which our students came, at the beginning of the cen- 
tury, embraced almost the whole South, and a large part of the 
middle and northern states. There was but one other college 
in Massachusetts, and that in its infancy ; and in fact the only 
important rival of Harvard in New England was Yale College. 
Dartmouth and Bowdoin were comparatively recent; and 
Brown University had but few students. There are now four- 
teen colleges and universities in New England alone, three of 
which are in Massachusetts, and all of them containing able 
and learned instructors, and all sustained by the zeal, energy, 
and liberality of a large body of friends. 

At the south, within the period named, Maryland, Virginia, 
North Carolina, South Carolina, and Georgia, have successfully 
striven to create or invigorate seminaries within their own bor- 
ders, which superseded the necessity of sending young men to 
the north for a collegiate education. The middle states have 
also greatly enlarged the number of their colleges, there being 
now nine in New York and ten in Pennsylvania, and they have 
added to the extent and usefulness of those then in existence. 
The Great West, which has been peopled almost entirely since 
the beginning of the present century, has for the most part sup- 
plied its own wants in this respect, and has furnished very few 
students to our eastern colleges. 

Another circumstance, of much weight, tending to retard the 
increase of immbers in Harvard College, has been the constant 



8 

raising of the requisitions for admission. The object has been to 
secure a higher and more solid education, by inducing young 
men to remain at the academies till their minds were more ma- 
ture, and their habits of application and discipline were better 
established. This has doubtless been practised to a consider- 
able extent in other colleges, although in some of them the 
standard is still lamentably low. Harvard has always taken 
the lead in this painful process, and has kept, in this respect, 
really in advance of the spirit of the age. Neither parents, nor 
teachers, have always been willing to accede to the demands of 
the College in this matter. It has been necessary to create a 
public opinion, which should sustain the College, and to bear 
with the temporary unpopularity, which vigorous eiforts against 
the common current never fail to produce. 

But those, who have been active in this measure, may well 
congratulate themselves on their success. Forty years ago it 
was no uncommon thing for boys of thirteen years of age to 
enter college. Yery few have recently entered at Harvard under 
sixteen, and the average age for several years has been seven- 
teen. Nor have the students of Harvard alone been the gainers 
by this process. The example has been followed by other in- 
stitutions; the standard of attainment is everywhere becoming 
higher, and the public begins to understand and value its impor- 
tance. The oldest institution has always been the pioneer in 
this path, and at the present time practically demands higher 
requisitions than any other for admission within its walls. This 
is as it should be, but, so far as mere numbers of students are 
concerned, it necessarily produces an unfavorable effect. 

Again, the expenses of living at Cambridge are unavoidably 
greater, than at any other place in the United States where a 
college is established, except in one or two of the large cities. 
The price of nearly every article, whether of necessity, comfort, 
or convenience, is in fact the same as in the city with which it 
is so much connected, and of which Cambridge almost forms a 
part. The charge for instruction, and the incidental expenses, 
are not materially higher than at other colleges, but the cost of 
living, of the food, raiment, and fuel, which every student must 
/have, is at least double that for which the same may be ob- 
tained at many other institutions. In the face of all these dis- 



couraging circumstances, the young student, alarmed at the 
requisitions of Harvard, tempted by the feeHngs of sectional 
patriotism to remain in his own CommonweaUh, and threat- 
ened with the expense of a residence in a city where everything 
is comparatively dear, is often deterred from following his own 
desire, and seeking the best education, and is induced to resort 
to a nearer and cheaper college, when he would really prefer a 
degree from Harvard. 

These remarks are not founded on theory or conjecture. Ap- 
plications are constantly made to the officers of the College, by 
young men in various parts of the country, who express a strong 
wish to become pupils, but who are finally discouraged by the 
prospect of the expense, and are obliged by their narrow means 
to resort to some other institution. And what renders this cir- 
cumstance a double misfortune is, that these young men are 
commonly in the class of those, who are eager to obtain an edu- 
cation for its own sake, and who would become an honor to the 
College. Let any one fairly consider the whole case, and he will 
be surprised rather that so many students continue to come to 
the College, than that it fails to attract more. 

Nor does this burden of expense bear upon the students only. 
The professors, with their families, the other instructors, and all 
persons employed in the internal operations of the College, must 
be supported, and the salaries and compensation must be made 
adequate to this support. The erection of new buildings, as the 
progress of the institution requires them, the constant repairs 
of old ones, the alterations for better accommodation, and the 
wages of labor, must all be provided for on the same scale of 
expense. The government of the College is certainly not an- 
swerable for its location. Our forefathers thought proper to 
plant it in Cambridge, then on the borders of a wilderness, now 
a city; it has grown up and flourished there; and by no stretch 
of wisdom or economy can its affairs be administered as if it 
stood in Williamstown or Amherst. 

It is needless to inquire, whether its success could have been 
achieved and maintained, to the extent it has been, without ex- 
traordinary efforts in some quarter to procure the means, and 
apply them properly. It is clear that this could not have been 
done, except by the unwavering and judicious course pursued 
by those to whom the charge of tlie College has been confided 
2 



10 

for the last forty or fifty years. They have carefully sought, 
in all quarters, for such additions to its pecuniary resources and 
intellectual strength, as should secure to its alumni the best ed- 
ucation which the country could afford. To gain this important 
end has been the aim of unceasing effort on the part of its gov- 
ernment. 

Although the result will not be questioned by any one, who is 
acquainted with the history of the College, yet it may be useful 
to refer to some of the steps which have been taken to procure it, 
and to show by what impulses the College has been steadily- 
moved onward, and for what reasons, as far as they can be as- 
certained, new resources have been frequently and liberally 
contributed. 

In 1801 the entire body of instructors, connected with the Uni- 
versity, consisted of six professors and four tutors. There was 
a professor in each of the following departments ; Divinity, 
Mathematics and Natural Philosophy, Hebrew and other Ori- 
ental languages, Anatomy and Surgery, Theory and Practice of 
Medicine, and Chemistry. The three medical professors were 
employed on subjects belonging rather to professional than col- 
legiate studies. They gave a short course of lectures only to 
undergraduates. The professors of divinity and Hebrew also 
devoted a portion of their time to theological students, who were 
resident graduates. It thus appears, that the instruction to un- 
dergraduates, in all the departments, was given by seven gen- 
tlemen ; three professors and four tutors. 

How does this compare with the provision made for these 
studies at the present day ? There are now ten professors, (be- 
sides two temporary vacancies in divinity and Latin,) each at 
the head of a separate department; four tutors, and three in- 
structors in modern languages: thus ensuring thoroughness of 
teaching in as many studies as can be usefully embraced in a 
course, which continues no longer than four years. Recitations 
from text-books are regularly heard with great care by each of 
these seventeen officers, as they doubtless will be by the others, 
when the vacancies are filled. Moreover, seventeen courses of 
lectures are given by different professors, during the year, to 
the advanced classes, embracing a great variety of topics in lit- 
erature and science, and especially designed to exhibit more 
comprehensive and practical views of the subjects, which have 



11 

occupied the students' minds, than can be obtained from the 
text-books alone, and to connect the past with the present state 
of knowledge. 

Thisbrief contrast is enough to show, that the College has not 
stopped nor lingered by the way, that it has kept fully up with 
the progress of the times, and that it has multiplied the objects 
of study, and enlarged the means of instruction; to an extent 
etirely adequate to every purpose of utility, and to all reasona- 
ble demands of the public. In fact, the quality of the instruc- 
tion has improved to a degree which can scarcely be explained 
to persons, who have not made it a particular subject of inquiry, 
but which is fully understood and appreciated by those, who 
compare the attainments of their sons with those made by them- 
selves thirty, or forty, or more years ago. 

The Committee express the opinion, that Harvard College 
does not offer the proper advantages for qualifying young men 
for the various pursuits of life; that some desire "specific learn- 
ing for a specific purpose," and "would gladly resort to an in- 
stitution of the higher class, for a limited period of time, if they 
could there obtain instruction which would make them better 
farmers, or mechanics, or engineers, or merchants;" and that 
the compensation of the teachers should depend, in some meas- 
ure, on their success in drawing students to their departments. 
And they intimate, that the exclusion of these objects is among 
the radical defects of the system pursued at Cambridge. The 
Committee seem not to have been aware, that every one of them 
has received the express and careful attention of the govern- 
ment of the College, the Corporation, Overseers, and Faculty, and 
that every one has been subjected to a fair and thorough experi- 
ment. 

As early as 1826, the Statutes provided that the College should 
be "open to persons, who are not candidates for a degree, and 
who desire to study in particular departments only." This pro- 
vision was thought, at the time, to promise large and beneficial 
results, by enabling young men, who had not the means, the 
time, or the inclination for pursuing a full college course, to 
profit by such instructions in the various departments, as would 
fit them for their special vocations in life. The scheme was 
carried into eflect, and continued in operation twenty years. 
Any student was allowed to select such branches as he might 



12 

choose, and to receive the same instruction in them that was 
communicated to the regular classes. The plan of the Commit- 
tee in this respect was completely carried out. Every depart- 
ment of the College was open to young men, who designed to 
be farmers, merchants, mechanics, or to follow any other pur- 
suit. Each student was to have a diploma, or certificate, when 
he left College, testifying to his attainments in the particular 
branches to which he had devoted himself 

After an experiment of twenty years, however, it was found 
that there was no such public demand, and that the College was 
providing for wants which did not exist. During that period, 
forty-eight students, only, of this description, applied for admis- 
sion ; an average of a little more than two a year ; and these 
were mostly such as had failed in the first instance in their ex- 
amination for entering the regular college course. A scheme so 
unfruitful in its results was at last abandoned, three years ago. 
If it should be still supposed that provision is necessary for spe- 
cific and partial studies, it is now supplied by the Scientific 
School, the students of which, if they desire it, have also the 
additional advantage of attending without charge all the lec- 
tures given to undergraduates. 

A plan somewhat similar in its aims, and applicable to all the 
undergraduates, was devised in 1838, and immediately put in 
operation. In consequence of suggestions from various quar- 
ters, the recommendation of the professors themselves, and the 
acts of the Corporation and Overseers, the students in all the 
classes, after the Freshman year, were allowed to select certain 
studies, and discontinue others.' This was called the Voluntary 
System, and was designed expressly to furnish specific studies, 
as far as possible, to those who desired them. If a young man 
was preparing for any particular occupation in life, he had an 
opportunity of storing his mind with the precise kind of knowl- 
edge requisite for his success. Moreover, the compensation of 
the instructors was to depend, in part, on the number of students 
drawn to the department of each, exactly in accordance with 
the views of the Committee. 

Such was the theory, and it was regarded as an auspicious 
change by the friends of progress and reform. It was soon dis- 
covered, however, that the project of compensating the instruct- 
ors in proportion to the numbers of their pupils, especially in 



13 

an institution consisting of established classes, was fallacious 
and impracticable. Students, who volunteered into one depart- 
ment, necessarily deserted another, and this without any regard 
to the talents and accomplishments of the respective instructors, 
but merely from the caprice of choice, and the attractive char- 
acter of certain studies compared with others. It is more than 
doubtful, also, whether this theory of compensation is correct 
in principle. It tends to foment rivalships and jealousies. It 
supposes the professor to act from mercenary motives, or, at all 
events, it appeals to those motives as the springs of action. He 
is driven to seek for numbers, and, to gain these, he must aim 
at popular effect rather than deep and thorough instruction. 
There are many ways by which men of ability and learning 
can make more money than by teaching in a college, and if they 
were not influenced by the less interested and higher motive of 
a genuine love of letters or science, it would be difficult to find 
competent men to undertake that important and responsible 
task. If you would have the services of such men, you must 
ensure to them a liberal support, and then, with a proper reli- 
ance on their sense of character, exact a faithful performance 
of their duty. 

The voluntary system has been continued, with various mod- 
ifications from time to time, although experience early indicated 
the necessity of dropping this particular part of it. The plan, 
though matured with much reflection and care, has not fully 
answered the expectations of its projectors. The object was to 
enable students, after a certain degree of progress, to devote 
their time and attention to such studies as would have a direct 
bearing on their future occupations in life, the very thing con- 
sidered so desirable by the Committee. It has been proved in 
practice, however, that many young men in college have not 
yet decided what occupations they are to pursue, and that very 
few of those, who have made this decision, are competent judges 
of the particular kind of studies best suited to their wants in 
this respect. It has hence appeared, that the choice has not 
been so much influenced by any forecast of the future, as by 
a present predilection, founded on taste, an imaginary preference, 
or a careful calculation of the relative amount of diligence neces- 
sary for maintaining a respectable rank in the diflerent depart- 
ments. Not one in ten, probably, has asked himself whether he 



14 

was to be a lawyer or physician, a farmer or merchant. Great 
praise is due to the instructors for the zeal and perseverance 
with which they have endeavored, for several years, to execute 
this plan, which a large portion of them had much at heart, al- 
though it increased their labors. It is still applied, in the two 
upper classes, to Latin, Greek, Hebrew, the modern languages, 
and mathematics. 

Notwithstanding the comparative failure of these attempts to 
introduce the changes and new methods approved by the Com- 
mittee, the government of the College must nevertheless claim 
the merit of having made the experiment seasonably, in good 
faith, and with earnest eiforts to secure success. But the fact 
is, a liberal education, or an education which shall prepare a 
itian to discharge with respectabiUty and intelligence the duties 
of any station in which he may be placed, cannot be made up 
of fragments, or a select portion of specific studies. The whole 
mind must be trained, by taxing and invigorating its various 
powers, implanting elementary principles, and establishing the 
habits of thought and attention. This can be done only by a 
long and continuous course of discipline, exercised in many dif- 
ferent studies, each of which shall contribute its share to unfold 
and strengthen the faculties, and prepare them for strong and 
harmonious action. Such an education qualifies a young man 
to enter upon life with a knowledge of himself, a confidence in 
his own resources and in his ability to apply them effectively, 
and with a consciousness that he deserves success, even if ad- 
verse circumstances disappoint his hopes ; and such an educa- 
tion, complete and thorough, may be acquired at Harvard Col- 
lege ; and, if it is not acquired, we are constrained to say it is 
not the fault of its organization, government, or instructors. 

Let us now glance at the progress of the College in multiply- 
ing and extending its means of instruction. Within the last 
forty years, the three largest and most expensive buildings have 
been erected ; Hoi worthy Hall, University Hall, and Gore Hall; 
the library has accumulated from fifteen thousand to fifty-seven 
thousand volumes, not including the law library, of fourteen 
thousand ; the philosophical apparatus has increased more than 
three-fold in extent and value, having been gradually, although 
but partially, adapted to the new discoveries and improvements 
in science; the Rumford Cabinet, consisting of a large number 



15 

and variety of models and machines for illustrating the appli- 
cation of the sciences to the useful arts, has been wholly pro- 
cured ; and the mineralogical cabinet, which, thirty-five years 
ago, was comprised in a single case of moderate dimensions, 
now numbers about thirty-six thousand specimens, arranged 
and classified, and so disposed as to be accessible to every stu- 
dent who is inclined to pursue that branch of study. 

Again, the professional schools of Divinity, Law, and Science, 
which now constitute an integral part of the University, did not 
exist half a century ago; they are comparatively recent crea- 
tions; and, in estimating the progress of the institution, its 
means of public usefulness, and the labors, vigilance, and zeal 
with which it has been managed, these are to be as much taken 
into the account as the academical department. The Medical 
School has also grown up from small beginnings to its present 
state of prosperity. A regular and systematic course of instruc- 
tion is given in all these schools, and four spacious edifices have 
been erected for their accommodation ; Divinity Hall, Dane 
Hall, Lawrence Scientific Hall, and the Medical College. The 
new chemical laboratory, in the Scientific Hall, is very extensive 
and complete, embracing all the recent improvements for exper- 
imental investigations. 

The number of professors in the advanced schools is thirteen, 
the number in the academical department, when the vacancies 
are filled, is twelve, making twenty-five in the whole. Nine- 
teen of these professors reside in Cambridge, and give constant 
instructions ; the six medical professors give their lectures at 
the Medical College in Boston. The average number of all the 
students residing at Cambridge, and immediately connected 
with the university, for the five years preceding 1810, grad- 
uates and undergraduates, was two hundred and twenty ; the 
average number during the last five years has been four hun- 
dred and forty-seven. At present, as may be seen by the cat- 
alogue, the number is four hundred and eighty-one. In addi- 
tion to these, the average number of students attending the 
medical lectures for the last five years has been one hundred 
and thirty-six; making a total average of five hundred and 
eighty-three. 

It thus appears that Harvard College is now an institution of 
more than three times the size that it was a half century ago, 



16 

containing nearlj'' three times the number of students, and more 
than three times the number of instructors, and giving an ap- 
propriate education in the most important professions, as well 
as conducting the preparatory studies of the more youthful class 
of pupils in a manner entirely adapted to the wants and wishes 
of the public; and, moreover, to assist in attaining these ends, 
the libraries and cabinets have been increased in a like ratio, 
and seven commodious buildings, two of stone and five of brick, 
have been erected. 

Nor ought another prominent and valuable adjunct to the 
University to be overlooked in this general outline. The Astro- 
nomical Observatory is of recent date, having originated in the 
enlightened zeal of a few scientific gentlemen cooperating with 
the ardent efljorts of the Corporation, and having been establish- 
ed by generous contributions from the patrons of the enterprise, 
and the noble bequest of one hundred thousand dollars by a 
single individual. Besides the general purposes for which the 
Observatory was designed, the Director and his assistants give 
instructions in practical astronomy, with the use of the instru- 
ments, to such special students as wish to profit by these great 
advantages. Observatories, so useful in improving the art of 
navigation and unfolding the sublime mechanism of the Heav- 
ens, have generally been the work and peculiar care of the 
governments in European countries, and have added largely to 
their renown in the estimation of the world ; and the Observatory 
of Harvard College, created by private contributions, will be 
regarded by every enlightened citizen, as an object of just and 
honorable pride to the State, as well as to the institution of 
which it makes a part. 

We may now inquire in what way, by what resources and 
efibrts, and by whose agency, these great, expensive, and last- 
ing improvements have been accomplished in so short a period? 
They are to be ascribed mainly to the wise and energetic meas- 
ures adopted and steadily pursued by the Corporation, as the 
acting and responsible board. The presidents of the institution, 
and the prominent men who have been successively associated 
with them, such men as Theophilus Parsons, John Davis, 
Christopher Gore, John Lowell, William EUery Channing, 
William Prescott, Joseph Story, and Nathaniel Bowditch, have 
spared no exertions, individually and in concert, to procure 



17 

from every quarter, public and private, the necessary means, 
without which, even the first steps could not have been taken. 
Sometimes the Legislature was appealed to, and at all times 
individuals of liberal minds and a generous spirit were sought 
out, both alumni and others, who, from motives of general be- 
nevolence, or a particular attachment to the College, might be 
induced to contribute of their abundance, either by donation or 
bequest, to the relief of its acknowledged or anticipated wants. 

These remarks may be particularly applied to the seventeen 
years of Dr. Kirkland's presidency, for a greater or less portion 
of which period, the eminent gentlemen above named were 
united with him in the Corporation. To the well known per- 
sonal character and influence of the President himself may be 
traced a large proportion of the benefactions so freely made 
during his official connection with the College. His associates 
and successors have labored successfully in the same field. 
More than seven hundred thousand dollars in value have been 
given to the College since the year 1800, besides the proportional 
share of the grant made to the several colleges in the Common- 
wealth by the Legislature. A large part of this amount has 
been money, bestowed for important foundations, and a very 
considerable proportion has consisted of books, instruments, and 
collections of various kinds. In procuring this large benevo- 
lence, while much must be attributed to the generous impulses 
of the givers, much is also due to the disinterested zeal, the di- 
rect solicitations, and personal influence of the President and 
Fellows, which stimulated and confirmed those generous im- 
pulses, and guided them to the end so happily attained. 

This is not mere conjecture, but a well established fact, 
founded on abundant testimony. Ninety-four thousand dollars 
were given by one of the gentlemen named above. It was 
by the efforts of President Kirkland and other members of 
the Corporation, that two subscriptions, one in 1817, the other 
in 1826, amounting together to about fifty thousand dollars, 
were collected from individuals in various parts of the Common- 
wealth for the benefit of the Theological School ; and it was by 
their joint influence, that foundations for at least four of the 
five new professorships in the undergraduate department were 
provided during that period. To similar efl^orts of his suc- 
cessors, and their coadjutors in the Board, we owe a fund 
3 



18 

of twelve thousand dollars for beneficiary students, of twen- 
ty-one thousand dollars for the Library, of twenty thousand 
for astronomical instruments, of one hundred thousand for the 
maintenance of the Observatory, of ten thousand for the erection 
of a President's house, a donation of fifty thousand dollars for 
practical instruction in the sciences, a bequest of fifty thousand 
for the aid of beneficiary students to take effect hereafter, and 
another bequest of more than three hundred thousand dollars, 
one-half of which at a future day is to redound to the use of the 
University. 

While these contributions do honor to the memory and char- 
acter of those by whom they were made, they are at the same 
time a tribute to the fidelity and trustworthiness of those who 
received them ; and an acknowledgment of the value, the suc- 
cess, and fair prospects of the institution over which they pre- 
sided. They are certainly a proof of an entire confidence, not 
only in the men to whom these munificent gifts were immedi- 
ately entrusted, but in the organization and stabihty of the 
Board, to whose management the donors beheved them to be 
forever consigned. 

The result of the whole is before the public. The position of 
ithe College, inadequate as are its funds for carrying out its com- 
prehensive purposes, speaks strongly for the labors of love con- 
ferred upon it from so many quarters, for the successful efforts 
of its immediate guardians and its able professors, for the fa- 
-vorable opinion entertained by so many intelligent patrons, and 
ifor the general approbation of its system of instruction, indicated 
as well by the growing number of its pupils, as by the course 
pursued at nearly every other college in the country, where the 
same kind of instruction is given, in the same way, and with 
similar views of its utility. 

It is for the Legislature to decide, whether anything more or 
better could have been reasonably expected from Harvard Col- 
lege, during the last forty or fifty years, than it has actually 
accomplished. Could its education have been advanced beyond 
its present point, even if such advance were proved to be desi- 
rable; or could its number of pupils have been expected to be 
larger, without further pecuniary aid for that special purpose? 
Could a greater confidence have been shown in the character 
and merits of the College by a discerning and liberal public, or 
'Could a more successful fidelity in the preservation and man- 



19 

agement of its resources have been exercised by a body of men 
under any organization daring so long a period? Will it not 
be conceded by every one, that a more prompt and efficient re- 
sponse to what was regarded by many as the voice of public 
sentiment could not have been made, than has repeatedly been 
done by introducing important changes in the modes of instruc- 
tion, and valuable additions to the subjects taught? And is not 
the organization of the institution, after a trial of two centuries, 
entitled to the approval and respect of the people of Massachu- 
setts for the results it has produced, and for the pledge it affords, 
by these results, of a constant improvement commensurate with 
the progress of the country ? 

It seems to have been taken for granted by the Committee, 
that, if the Legislature had the legal and constitutional power 
to change the organization of the College, or, in other words, to 
effect a radical alteration of the Charter, they would undoubt- 
edly do so as a matter of expediency. The facts briefly enu- 
merated above are confidently appealed to, as showing at least 
the great improbability, that any other mode of governing the 
College would have produced a greater amount of good to the 
community, or have been more entitled to the entire approbation 
of the Legislature, than the one which has been established and 
practised for so long a time. Change is not always improve- 
ment, and it is seldom apt to be such, when a system which has 
stood the test of experience, fulfilled all reasonable hopes, and 
secured from its agents a faithful discharge of duty, is unhinged 
and deranged by theoretical amendments. 

The predecessors of the present board of President and Fel- 
lows have been well known to the public ; their character and 
intellectual qualities have placed them high among the first 
men of Massachusetts. Better men could not have been found 
to administer any system, for the plain reason that there were 
no belter; and if they have failed to answer the expectations of 
the people, it may safely be affirmed, that these expectations, 
are not likely to be answered by novel devices or untried forms. 
We can perceive no such virtue in mere organization, as the- 
Committee would seem to imagine. Every system, whatever 
its organization, must be entrusted to individuals, and be exe- 
cuted by them, according to the measure of their judgment and 
ability. The best feature in any system is that, which secures 



20 

a judicious selection from the best men for carrying it into 
effect. If the past history of the College proves that object to 
have been attained, for a long term of years, nothing higher 
can be reached, and the motive for change does not exist. 

11. We now pass to the second general top'c of the Commit- 
tee's Report, the proposed alteration of the Charter, by enlarging 
the number of members in the Corporation, and providing for 
their election by the Legislature. 

The present Board consists of seven members, including the 
President and Treasurer; and vacancies are filled by the Board 
itself, subject to the negative of the Overseers. Not satisfied 
with this number, the Committee recommend fifteen, without 
assigning any special reason for their choice; and they propose 
that one-third of this number shall be elected by the Legislature 
every two years, thus making the term of office for each mem- 
ber six years; except the President and Treasurer, who, in 
regard to the mode of their election and tenure of office, are left 
on the old basis. 

Since there is no magic in numbers, it is not probable, that, 
if a new charter were now to be granted, any person would 
insist that seven individuals constitute the precise and only 
number to which so high a trust can safely be committed. We 
are contented with this number, because it has proved itself 
perfectly adequate to every purpose for which the Board was 
constituted ; and we prefer to retain it, because change in a long 
and well established usage, when its practical results have been 
all that could be desired, is always of doubtful issue and hazard- 
ous, and because there are substantial reasons why the duties 
now incumbent on the Board can be better performed by a small 
number than a large one. 

By far the most weighty and responsible trust reposed in the 
Corporation is that of the funds. The entire history of the Col- 
lege proves this trust to have been scrupulously and most satis- 
factorily fulfilled from its very foundation. The Committee of 
the State Convention in 1821, appointed to report on the consti- 
tutional rights and privileges of Harvard College, looked care- 
fully into this matter. They say, "As to the care and manage- 
ment of the funds, it is believed to have been cautious and ex- 
act, in a very high degree. No delinquency, to the amount of 
a single shilling, is known to have existed in any member of 



21 

the Corporation, or any of their agents or servants, from the time 
of the first donation, in 1636, to the present moment." This 
language is strong and conclusive, and it may be applied with 
equal force to the period of thirty years since the report was 
made. 

The exactness with which even small sums have been pre- 
served, and appropriated to their precise objects, is remarkable. 
The whole amount of the donations for beneficiaries yields an 
income at present of nearly fifteen hundred dollars, which is 
annually divided among meritorious and indigent students. 
This amount is composed of thirty separate donations, made at 
difierent times; the first of them just two hundred years ago. 
Five of these donations remain at the same amount as when 
they were originally given ; each of the other twenty-five has 
considerably increased. If the examination were extended to 
the larger grants, the results would be equally favorable. And 
it is a matter of just surprise, reflecting the highest credit on 
the Corporation, that, while for a hundred years in the colonial 
times and during the revolution, the currency was in a state of 
constant and extreme fluctuation, the integrity of the College 
funds should have been preserved with so much exactness. Is 
it likely that fifteen men would have done the business better? 
More entire success they could not have attained. 

No maxim in human affairs is better established, than that 
men acting together in important trusts will feel their responsi- 
bility in proportion to the smallness of the number of those with 
whom it is to be shared. On this principle we may probably 
account, in great part, for the excellent management of the 
seven men, who have been responsible for the College funds. 
All these men have stood prominently before the public, and 
each has regarded his personal character and reputation as 
deeply involved in the direction of the affairs submitted to the 
counsel and guidance of the Board. Moreover, they have had 
no private ends to answer, no compensation for their services, 
and no opening prospect of future advancement or benefit 
arising from any plans they might devise, or any measures 
they might adopt. If this responsibility had been divided 
among double the number, no one can suppose that it would 
have been felt with equal weight by the individual mem- 
bers, or have excited them to the same degree of activity and 
caution. 



22 

In a practical view, also, the number proposed by the bill, 
selected from various and even remote parts of the State, as 
suggested by the Committee, would be attended with embarrass- 
ment and serious difficulty. The regular and necessary busi- 
ness of the University requires frequent meetings of the Corpo- 
ration. There is a stated meeting once a month, and on an 
average a special meeting as often, and sometimes much oftener. 
Is it to be expected, that fifteen men. scattered over the Com- 
monwealth, or a majority of them, will give their time, and 
neglect their private affairs, to come to Boston or Cambridge 
once a fortnight, at their own expense, to attend these meet- 
ings? Such a thing cannot be presumed. Meantime, tlie work 
must be done; the College cannot stop; neither its pecuniary 
interests nor its internal operations can be allowed to suffer 
derangement. The effect would be to entrust the essential 
business to a committee, consisting of members residing near at 
hand, who could give their attendance, and of a smaller num- 
ber probably than that of the present corporation ; and when a 
full board should be occasionally brought together, they would 
do little more than confirm the acts of their agents. Whether 
this would be an improvement on the ancient and existing 
system, the wise can judge. 

A reason assigned in the Report for enlarging the Corporation 
is, that it '' would bring to the government of the College a 
variety of taste, knowledge, and opinion, corresponding to the 
sentiments of the people of different sections of the Common- 
wealth." Now, let us ask what is wanted as a preUminary 
guide for the judicious and effective management of a literary 
institution. Is it not to ascertain, as far as it can be done by 
observation, inquiry, and reflection, what is the state of en- 
lightened public opinion on this subject? Is a man, because 
he is an inhabitant of a distant county, under more favorable 
circumstances for ascertaining and understanding this point? 
Public opinion on such a subject is not the local sentiment of 
a particular district, but the general voice of mankind. What 
then is to be gained, in this respect, by collecting men together 
from various and remote parts of the Commonwealth ? As to 
"a variety of taste, knowledge, and opinion," it can scarcely 
be appealed to as an element of harmony, or a promoter of wise 
counsels and united action. It is more likely to be fraught 



23 

with sectional prejudices, and to breed discord, delay, and con- 
fusion. A college system must be uniform, and it cannot be 
bent to suit the varying opinions and tastes, the social habits, 
and peculiar desires of all the people in the State, for the ob- 
vious reason that these are not the same in different places, nor 
steady anywhere. 

We do not perceive any advantage, therefore, that can be 
derived from the proposed combination, which is not already 
possessed ; but we can clearly discover many evils with which 
it must inevitably be attended. 

It is made an objection to the present form of the Corporation, 
that the office is "for life;" and the Committee say, in the same 
strain of objection, that "perpetuity of office and opinion is 
contrary to the genius of our institutions." Let us see what 
has been the official life of the Fellows in the Corporation. 
What kind of perpetuity have they enjoyed? During the last 
half century the average term of service in the Board has been 
ten years and three months. A few have served longer ; others 
for a considerably shorter period ; some for one or two years 
only. The bill provides that the Fellows shall serve six years. 
Is the difference worth considering 1 

Again, it has been proved in practice, that new elements have 
been constantly brought into the Board, thereby introducing a 
variety of ideas and a renovated spirit of activity. On an 
average there has been a new member as often as once in two 
years, being a change of one-fifth of the Fellows. The bill pro- 
vides for a change of one-third in two years. Is this difference 
worth considering? 

Perpetuity of opinion is a phrase not easily to be defined or 
comprehended in the present age of intellectual progress and 
triumphs. It would require something more than the forms of 
a corporation to arrest the current of opinion, or resist its influ- 
ence upon the mind. Whatever meaning the Committee may 
attach to this phrase, however, we have adduced abundant evi- 
dence above to show, that the Corporation of the College have 
adliercd to no rigid system of opinions, but have yielded freely 
to the general sentiments of the community, sought light wher- 
ever it could be found, and applied it in every way practicable 
for the prosperity and continued improvement of the institution. 
It may safely be asserted, also, that mere organization at the 



24 

present day. in these United States, is not a contrivance by 
which opinions can either be perpetuated or controlled. 

The objections to that part of the bill, which provides a remedy 
for the imaginary danger of the existing mode of filling up the 
vacancies in the Corporation, by transferring the elections to the 
Legislature, are too obvious to need an elaborate examination. 
The great object to be sought, in an election to an office, is to 
obtain the services of a man, who, by his ability and character, 
is the best qualified to discharge its duties. If this object is 
gained, the form of doing it is of little importance ; and a small 
number of electors, who understand the nature of the office, and 
whose relations to it leave no room for personal bias, is much 
more likely to make a judicious choice, than a large number en- 
tirely unacquainted with the subject. This has been complete- 
ly verified in the history of the Corporation. The Board has 
been constantly filled by competent men, discharging their duty 
faithfully, and commanding the favorable regards of the public. 
Is it probable that better men would have been chosen by a dif- 
ferent form of election? 

This matter was doubtless maturely considered when the 
Charter was made, and there were wise men in those days as 
well as in later times. A principle so vital as that of the tenure 
of office, and security for its continuance, could not have been 
overlooked. And it is remarkable, that, in the six new charters 
proposed between the years 1672 and 1700, in some of which 
the Corporation was enlarged, the tenure of office and mode of 
election were precisely the same as prescribed in the first Char- 
ter. This fact would seem to furnish conclusive evidence, that, 
whatever changes in other respects might have been thought 
advisable, this particular feature was deemed to be of radical 
importance. Nor have any facts been produced, from which 
even an inference could be drawn, that an election by the Leg- 
islature, or any other body of men distinct from the Corpora- 
tion, was proposed. 

Furthermore, if the bill were put in practice, it would invade 
the rights and annul the powers of the Overseers, unless it is 
intended that they shall confirm the appointments of the Leg- 
islature. By the Charter, no election is valid, till it has received. 
the assent of that Board; and, by the rules of the Board, this 
assent can be given only at a stated meeting of its members, a 



25 

majority of whom are chosen annn ally by the people or their 
representatives. The Corporation has in effect only a nominat- 
ing power in the election of its own members, as well as of 
all other officers. No elections can be made, no degrees can be 
conferred, without the concurrence of the two Boards. In the 
exercise of power, the Corporation of Harvard College is under 
much heavier restraints than is customary in other similar insti- 
tutions. In Williams College, for instance, and we believe in 
nearly all the colleges in the country, there is but one board, 
consisting of members who hold perpetual succession, fill up 
their own vacancies, make all appointments, and transact the 
important business, without the control or advice of any other 
authority. 

Since custom and large experience have almost universally 
sanctioned this mode of constituting college boards, it must fol- 
low, that, in the opinion of considerate and practical men, it 
rests on sound principles, and is, on the whole, the best that can 
be devised. If it is not free from defects, the same may be said 
of every other imaginable plan; and it has doubtless been be- 
lieved, that these are greatly overbalanced by the superior ad- 
vantages it affords, by the stability and permanence of action 
which it ensures, and by the steady confidence which it inspires. 
If the same advantages could be made to result from a different 
form of election, there might be no harm in the experiment; but 
even then no valid reason could be given for a change. It is 
not wise to hazard the loss of a good thing, with the doubtful 
hope of finding another equally good. 

An election by the Legislature, at the short intervals of two 
years, certainly does not promise the security absolutely essen- 
tial for the consistent action ajid permanent success of such a 
board. If one thing more than another is of vital importance to 
the prosperity of a literary institution, it is that it should be 
kept aloof in all its connexions from the agitating influences, 
which pervade the community from time to time, enlisting . 
men's passions, and often Massing their opinions and perverting 
their judgment. Looking to experience, and to the nature of 
our political organization, can any one doubt, that the elections 
would turn on other points than those of the highest qualifica- 
tions for the office? Would not each party, as it should have 
the ascendancy, take care to supply the vacancies from its own 
4 



26 

ranks ?- These questions cannot but meet an affirmative answer 
in every mind. 

What could be hoped from the wisdom or unanimity of a 
board, consisting of materials so dissimilar as would in this way 
be soon brought together ?- With good intentions as individ- 
uals, how long would a body of men thus organized, possessing 
conflicting ideas on many prominent topics, and acting upon 
different principles in many points of mom.ent. be likely to com- 
mand the confidence and respect of the public ] Fluctuating 
counsels would lead to feeble measures, and contending opinions 
would foment discords, and generate instability. Would the 
sagacious men, who so largely contributed at different times to 
the aid of the College, have entrusted their munificent benefac- 
tions to the guardianship of a board thus constituted ?- 

There is still another aspect, scarcely less unfavorable. 3Ien. 
who have been elected on political considerations, will easily 
persuade themselves that they must support their friends; and 
we shall have professors and other officers chosen under the 
same influences, till the College itself will become an arena of 
party conflicts, instead of a quiet retreat for the discipline of 
youth in the learning and habits, which are designed to qualify 
them to discharge, in the years of manhood, the duties of good 
citizens and good men. 

But we will not extend our remarks on this point. Its bear- 
ings are easily traced, and cannot fail to make a strong im- 
pression. 

Having thus presented such a statement of facts, and such 
reasons, as in our opinion render it in the highest degree inex- 
pedient to change the organization of the College government, 
especially in the manner proposed, it remains only to urge upon 
the attention of the Legislature, the considerations that arise 
from the legal and constitutional view of the subject. 

III. In regard to the legality of the proposed measure, your 
Memorialists have given to the act and the Report accompanying 
it, and also that therein referred to. made by a Committee ap- 
pointed for the Uke purpose at the preceding session, (Senate 
Doc. 15S) careful consideration, and respectfully ask leave to 
submit the following considerations concerning it. 

As the act contains no provision making the assent of the Cor- 
poration of any consideration, and no commimication was made 



27 

concerning it to any member of the Corporation, and no opportu- 
nity given for any hearing upon the charges made, or the expe- 
diency of the change ; and the speech, delivered by the Honora- 
ble Chairman in support of the bill, indicated that no regard 
was intended to be had to the assent or dissent of the Corpora- 
tion, the Memorialists are called upon to consider the act as one 
intended to be imposed upon them, by virtue of the absolute 
power of the Legislature, irrespectively of any cooperation or 
consent on their part. 

The act proposed, although entitled an act relating to Har- 
vard College, and purporting to effect merely a change in the 
number of the corporators, and the manner of their election, is, 
in fact and legal effect, an act for abolishing the present Corpo- 
ration by a seizure of its franchise, and a confiscation of its es- 
tates, for the purpose of a disposal of them to other persons, at 
the pleasure of the government. It is an act to enforce upon 
the Corporation a charter essentially and most materially difler- 
ing from that, under which its estates have been acquired, held, 
and managed for two centuries; under which public and pri- 
vate donations, to an extent wholly unapproached in any other 
like institution in this country, have been made, with constantly 
increasing liberality and confidence, to the present day; and un- 
der which the College has maintained a uniform and unques- 
tioned rank, in regard to its means and standard of education, 
certainly not surpassed by that of any other on this side of the 
Atlantic. 

Your Memorialists, as the trustees and representatives of the 
College, have legal rights to this Charter ; and under it have 
acquired and are the sole owners of the estates held by them 
for the purposes prescribed by it. The proposed act, if passed, 
will deprive them of both. It abolishes the Charter held by 
them, and substitutes another against their will. It seizes the 
estates from their possession and control, and places them in 
the hands of other persons, in whose appointment they have no 
voice. It transfers the right and power of governing the College 
from those who now hold it, in the manner prescribed by the 
Charter, to other persons. It takes the management and appli- 
cation of the funds placed in the hands of particular trustees, 
by the donors, with power to elect their successors, and to 
whom numerous benefactors have entrusted munificent gifts, in 



28 

the faith that such mode of appointment and succession would 
be perpetual, and commits them to the guardianship and con- 
trol of persons, to be appointed b}^ those, who may from time to 
time be members of the Legislature. It annihilates the most im- 
portant function and duty of the Board of Overseers, by taking 
from them the power of rejecting persons elected to the Corpora- 
tion. It is a virtual declaration of forfeiture of a franchise and 
of estates held under it, without trial or judgment. It is based 
upon the assertion of power which, if it may effect this change 
to day, may at any future time make the election of members 
and officers of the Corporation annual, or make any other change 
at pleasure. In short, the act is one for the destruction of the 
existing Corporation, and the organization cf another in its 
place, upon wholly different principles and foundations. 

Believing that the Charter of the College was granted and 
carefully framed for the chief, among other purposes, of giving 
to it, and the estates that should be granted, and the offices of 
membership and instruction that should be held under it, that 
permanency and security from agitations and dangers, by which 
alone its great and beneficent purposes can be accomplished; 
and that the generous donations, which constitute by far the 
greatest portion of its funds, were bestowed upon faith in the 
perpetuity of the Charter, and that none can hereafter be hoped 
for, if it be subject to any material alteration without the con- 
sent of the Corporation : — your Memorialists confidently trust, 
that changes so entire as that now proposed will not be made 
without the maturest deliberation, and a profound conviction of 
Iheir legality as well as of their expediency ; and, in availing 
themselves of the opportunity thus afforded, of presenting their 
views upon a subject of such grave importance, beg leave to 
express their appreciation of that sense of justice, which actu- 
ated the Honorable House in perm^itting them to be thus heard, 
before passing the decree of condemnation and forfeiture, which 
the passage of the act must import. 

Whatever may otherwise be the demerits of your Memorial- 
ists, they entertain a becoming sense of their duties and respon- 
sibilities as trustees of a great institution, established for the 
public good, of high importance to the best interests of the 
Commonwealth, and which, hitherto, at least, has done much 
for the promotion of her welfare and glory ; and of the respect 
and deference, which are due to the opinions and wishes of the 



29 

people, manifested by their delegates in the Legislature. Nor 
would they be disposed to oppose any reform thus desired, in 
the organization of the Corporation, consistent with their con- 
victions that such was required by its interest, and their belief 
in their obligations to its benefactors, upon any grounds of 
merely legal right. Although the law deems the franchise of 
each member of this Corporation a thing of value, and a subject 
of property, yet there is no member of the Board who does not 
know that it is a severe burden, for bearing which there is no 
compensation except a sense of public duty performed, and from 
which it would be a sensible and great relief to be honorably 
discharged. But, as trustees of the College, holding its Charter 
and estates, and as its legal governors under the supervision 
of the Overseers — which Charter, estates, and government, have 
been placed in their keeping by virtue of that Charter, to be 
holden, administered, and transmitted, pursuant to its provis- 
ions, and most of which estates were bestowed in the faith that 
such tenure and administration were unalterable, unless by 
the consent of the trustees for the time being — your Memo- 
rialists would be false to themselves and their trust, should 
they acquiesce in any change in the Charter, which their own 
sense of duty and expediency do not sanction. Nor can they 
be considered wanting in humility, or due deference to the opin- 
ions of others^ however elevated in rank and power, in thus 
making their own convictions essential to tlieir assent ; since 
the obligation of judgment and of action, according to their 
conscientious belief, upon that subject, is one of the first duties 
required of them by the nature of the trust, and from which 
they have no honest or honorable escape. With these feelings, 
and in discharge of this duty, they proceed respectfully to pre- 
sent their views upon the legal question now raised. 

The alleged power of the Legislature to enact this bill is 
represented, in the Report of the Committee, to be derived from 
two sources ; first, the rights of the State as founder of the Col- 
lege ; secondly, the rights of the State recognized in the proviso 
to the first section of the fifth chapter of the Constitution. And 
the rights of the State as founder are stated to be of two kinds, 
namely, legislative authority to make all needful statutes for 
the government of the College; and visitatorial, or judicial au- 
thority, to examine the conduct of all persons entrusted with the 
management of the institution. 



30 

These propositions of the Committee, which are stated in their 
Report so generally as to make it difficult to comprehend their 
meaning and extent, are, however, more fully developed in the 
speech delivered by the Honorable Chairman in support of it, 
and to which reference therefore is necessary, as an exposition 
of the principles involved in them, and relied upon as author- 
izing the passage of the bill, and which are summed up in the 
following manner. 

1. The State is the legal founder, having bestowed the first 
benefaction upon the College. 

2. The institution is public, and therefore subject to the pub- 
lic will, which can be expressed only through the Legislature. 

3. If the institution, legally considered, be private, the State, 
as the founder, being immortal, may regulate and govern it, as 
an individual may regulate and govern his own charity during 
his natural life. 

4. That, in an eleemosynary institution, the law will notice 
no rights but those of the founder, and therefore, in this case, 
there is no interest adverse to the interests of the State. 

5. That the corporators have no private legal interests in the 
offices which they hold ; that they are the agents of the State 
for the distribution of its charity, and may be removed at the 
pleasure of the Legislature. 

8. That the proviso in the Constitution of 1780 secures, in the 
Legislature, power over the Corporation and Board of Overseers 
of Harvard College, which may be exercised without the assent 
of any other body. 

The sixth, seventh, and ninth are omitted, as immaterial in 
considering the question of legal right. 

Your Memorialists believe, that no more forcible exposition of 
the principles, that would be involved in the enactment of this 
bill, could be suggested, than the bare recital of these proposi- 
tions, upon which the authority of the Legislature to pass it is 
thus avowedly rested. They are, in express terms, or by neces- 
sary implication, that the College has no rights nor property, as 
against the State ; that its officers hold all its estates merely as 
agents of the State, and subservient to its will ; that those es- 
tates constitute a charitable fund belonging exclusively to the 
State, in which no other body or person has any right ; and that 
the Legislature, as the sole expounder of the public will, may 



31 

abolish the CorporatioHj dismiss its officers, take possession of 
its funds, and dispose of ihem at its pleasure. It is true, that 
the report does not contain the direct declaration that the Leg- 
islature may convert those funds to purposes other than those of 
education ; and that, in one part of the speech referred to, that 
power appears to be disclaimed. But it is self-evident that, if 
the propositions stated in it, as above cited, are maintainable, 
the State has the legal right to terminate such use of its own 
property at pleasure, and divert its charitable fund to any other 
use, which the Legislature may at any time think more condu- 
cive to the public good. 

Both the Conimittees, who have had this subject under con- 
sideration, have rested upon the history of the College, and of 
the Colonial, Provincial, and State legislation concerning it, as 
indicating and illustrative of the powers now claimed to alter 
the Charter of the College, and control its aifairs. But your Me- 
morialists respectfully submit, that they have studied the his- 
tory of the College, and of the Commonwealth and its past and 
present jurisprudence, in vain, if the principles upon which such 
power is asserted have any sanction or foundation in either of 
them. 

The original design of the College is unquestionably found in 
the Act of the Colonial Legislature of 1636, by which it was 
resolved to give " £400 towards a school or college ; £200 to be 
paid in the course of the ensuing year, and £200 when the work 
should be finished ; and that the place and manner of building 
should be determined at the next court;" and, by the consequent 
order in 1637, that the College should be at Newton, and the 
appointment of twelve persons " to take order for a College at 
Newton ;" which will stand forever, a monument alike to the 
piety, intelligence, and patriotism of the founders of the Com- 
monwealth. 

The poverty and financial condition of the colony were such, 
however, that no donation was made in pursuance of this re- 
solve, until after the erection of the College, if it ever was paid; 
of which, to say the least, there is no proof whatever, unless 
the gift of the ferry, and the contributions of the colonial gov- 
ernment in annual grants, subsequently made, were considered 
and received as in fulfilment of this promise. 

Butj in the ensuing year, John Harvard died, bequeathing to 



32 

the College his library, then of great value, and one-half of the 
residue of his estate, which was large for those times.- And, 
with the means thus acquired, and private donations, including 
a receipt from the ferry, and two rates from Cambridge and 
Watertown, in 1639, the College edifice was erected ; there be- 
ing no reason to believe that the site for it had been selected 
until after this bequest ; and the first money received and 
appropriated for its construction, and which approached to nearly 
one-half of the whole cost, was from the hands of the adminis- 
trator of John Harvard's estate, from whom was also received 
the valuable collection of books and manuscripts which first 
graced its walls, and becam.e the foundation of that library 
which still continues the most valuable and extensive in the 
Commonwealth. 

Upon knowledge of this munificent bequest, by means of 
which the colonial government was enabled to commence and 
carry into effect its generous and patriotic design, they, in token 
of their gratitude, and in honor of his memory as its efficient 
founder, immediately ordered that the College should be named 
Harvard College. No declaration or act could be more expres- 
sive or conclusive of the opinion then entertained by the gov- 
ernment, or of their design forever to establish the right of John 
Harvard to be considered the founder of the institution, than 
this baptism of it with his name. And no man, even upon the 
definition given by the Committee, had stronger grounds for 
claiming to be so esteemed. Nor until recent times has his 
claim ever been questioned. On the contrary, the colonial gov- 
ernment, at a subsequent period,' in a public address, in the year 
1661, expressly designate John Harvard as the principal found- 
er of the College. It might, under other circumstances, seem a 
needless criticism to add, that the term founder can have no 
other meaning than that of first or original donor or benefactor, 
and can with no propriety be applied to any subsequent one. 

In 1640, the Legislature granted to the College the ferry be- 
tween Boston and Charlestown. 

In 1642, the. first Board of Overseers was created, with powers 
to make orders and rules for the government of the College, and 
to manage and dispose of its lands and revenues, and of all 
gifts to the use of the College, or the members thereof. And, up 
to the year 1650. the property given to the College was vested in 



33 

the colony, and subject to its management and disposal, directly 
by the Legislature, or through the instrumentality of the Board 
of Overseers. No power, however, was given to that Board to 
receive or hold estates given to the College, but merely legisla- 
tive and ministerial authority over it. 

But in 1650 it was thought advisable, as a means, among 
other purposes, of encouraging donations, and of establishing 
the institution upon an independent foundation, obviously essen- 
tial to its progress und usefulness, to make the College an incor- 
porated institution ; and the Charter was granted, by which, 
after reciting that, whereas, through the good hand of God, 
many well-devoted persons had been and were daily moved to 
give and bestow gifts, lands, legacies, and revenues, for the ad- 
vancement of all good literature, arts, and sciences, in Harvard 
College, and to the maintenance of the President and Fellows, 
and accommodation of buildings, and other provisions that may 
conduce to the education of the FJnglish and Indian youth in 
knowledge and godliness, it was thereby enacted, that for those 
purposes the College from thenceforth should be a corporation, 
consisting of seven persons, to wit ; a President, five Fellows, 
and a Treasurer, (who were therein named,) with power to ap- 
point their successors, under approbation of the Overseers; and 
which President and Fellows, for the time being, should, forever 
thereafter, in name and fact, be one body politic and corporate 
in law ; and should have perpetual succession ; and should be 
called by the name of President and Fellows of Harvard Col- 
lege, and by that name should purchase and acquire, or take 
and receive upon free gift and donation, any lands, tenements, or 
hereditaments, (not exceeding a specified annual value,) and 
any goods and sums of money whatsoever, to the use and be- 
hoof of the President and Fellows and scholars of said College ; 
with power to establish a common seal, to appoint ofiicers, and 
make by-laws, if approved by the Overseers. And by an addi- 
tional act, in 1657, the power to make by-laws was enlarged, so 
as not to make the previous consent of the Overseers essential to 
their validity, making them, however, subject to revision or re- 
jection by that Board. 

By virtue of this Charter, the College became a legal being, or 
person, endowed with powers to hold and manage estates, real 
and personal, appoint officers, and enact; laws, for the accom- 
5 



34 

plishment of the purposes of its creation, as prescribed in that 
instrument : with power of transmitting those powers and es- 
tates to other persons, of its own appointment, as members of 
the Corporation. And the legal title, possession, and absolute 
control of all the property, theretofore held by the colony for its 
use, and of all that should be subsequently acquired, became, 
or was to become, vested in the President and Fellows for the 
time being, as of the sole estate of the Corporation. They also 
became invested with all the rights, privileges, and immunities 
incident to membership of a corporate body, and subject to cor- 
responding duties and obligations, for the fulfilment whereof 
they were amenable only to the Board of Overseers, and to the 
general laws of the land. And the State thereby surrendered 
all right and title to such property, and all power of resuming 
it, or of interference with those rights, privileges, and immuni- 
ties, excepting in so far as any right of such interference was 
reserved in the Charter, or was inherent in the power to enact 
general laws regulating such corporations. 

No change was made or attempted in the Charter, and nothing 
appears to have taken place indicating any question of its valid- 
ity, or any interference with the rights granted under it, so far 
as your Memorialists can ascertain, until after the termination 
of the colonial government, in 1685, by which it had been 
granted, excepting the anomalous procedure in 1674, recited in 
the Report of 1849, by which the Overseers, Corporation, Presi- 
dent, and students, were all summoned before the General Court 
and dismissed with a vote. - that if the College should be found 
in the same languishing conditionat the next session, the Presi- 
dent should be dismissed without a further hearing." As the 
College was then in a state of disorganization, four of the mem- 
bers of the Corporation having resigned their seats, leaving the 
Board without a constitutional quorum, and it was in utter 
confusion, and extreme poverty, depending upon the annual 
grants of the Legislature for daily subsistence, this strange ex- 
ercise of arbitrary power, as obviously inconsistent with the 
personal as the corporate rights of the persons summoned, may 
well be accounted for, without supposing any reference on 
either side to the legal right of such a procedure ; which it is 
believed that the most strenuous advocate for legislative su- 
premacy would not venture to vindicate on legal principles. 



35 

The charter of 1672, also referred to in that Report, contained 
no material alterations of that of 1650, except by increasing the 
number of corporators to ten. It was, however, as is conceded, 
never accepted, or acted upon by the Corporation ; and no effort 
was ever made by the Legislature to enforce it upon them. 
So far, therefore, as it is to be esteemed a precedent, it is one to 
the point, that an enactment affecting the charter, not accepted 
by the Corporation, was considered of no legal validity. 

The Report of 1849 states, that, in 1673, " the General Court, 
by an order, made an addition to the Corporation." And this 
statement is seemingly much relied upon in that, and in the 
Report accompanying this bill. Your xAlemorialists have caused 
the records of the General Court and of the Colleo^e to be 
searched, and are mformed that no record of any such order, or 
of anything done under such an one, can be found in either. 
And they are satisfied that none such was ever passed. Upon 
inquiry for the authority, upon which this statement was made, 
they were referred to a note to the 159th page of first volume of 
Hutchinson's History of Massachusetts; the same work so em- 
phatically denounced as containing false statements, and false 
law, in the learned speech before referred to. The note is ob- 
viously loose and general, not purporting to be of that specific 
nature which implies accurate information. It is merely, that, 
" Under this charter, (of 1650,) the College was governed until 
the year 1685, when the Colony Charter was vacated; saving 
that, in 1673, by an order of the General Court some addition 
was made to the number of the Corporation;" this author thus 
bearing testimony to the otherwise uninterrupted enjoyment of 
its charter. 

It appears plain to your Memorialists, that the historian has, 
not unnaturally, confounded an order of the Overseers passed in 
December 1674, and a compliance with it by the Corporation, 
with a supposed order of the General Court so acquiesced in. It 
appears as before stated, that the College was in a state of entire 
disorganization by the resignation of four members of the Cor- 
poration, and by the disorders and dissatisfaction which fol- 
lowed. In this state of things the (Overseers passed an order, 
commending to the President and Fellows then reniainiufr^ that 
they take caro to fill up their number according to their charter, 
so that their power and privilege, granted by the General Court, 



36 

might not be weakened or abated in any kind ; and the Corpora; 
tion proceeded immediately to fill np the vacancies, in the usual 
regular manner. Indeed, these proceedings of the Overseers and 
Corporation are conclusive proof, that no such order of the 
General Court could have been passed, or, if passed, could have 
been acquiesced in by the Corporation, as otherwise they would 
have been needless. 

Thus it is apparent, that no authority can be found in any 
action of the Colonial Government, by which the charter was 
granted, for the claim or right to revoke or alter it. That of the 
Provincial Government is the next to be considered. 

In the great confusion of ideas concerning political and pri- 
vate rights and relations, which was caused by the cancelling 
of the Colonial Charter in 1684; and the general ignorance con- 
cerning corporate rights and privileges, the College being the 
only Corporation established in the Province, it was naturally to 
be expected, that great mistakes concerning them would exist, 
and corresponding irregularities take place in the administration 
of its aifairs. 

It appears, indeed, to have been inferred on all sides, that the 
vacation of the Colonial Charter repealed or abolished that of the 
College also. Probably upon the same principles on which it 
was assumed, that all Colonial acts, including even grants of 
lands, ceased to be valid. Under that impression the rulers of 
the Colony, both before and for a short period after the granting 
of the Provincial Charter, so far assumed the control of the insti- 
tution as to appoint officers for its government. Such were the 
appointments of Increase Mather, John Leverett, Thomas Brat- 
tle, and William Hubbard, mentioned in the Report of 1849. 
But Mr. Mather, at the time of such appointment, was the act- 
ing President of the Corporation, under a previous request of the 
Overseers ; Mr. Leverett was a member of the Board ; and Mr. 
Brattle a tutor in the institution ; so that the appointments may- 
well be supposed to have been at the request and not in opposi- 
tion to the desire of the Corporation. And it is worthy of obser- 
vation, that these appointments are found only upon the books 
of the College, — no allusion whatever being made to them in the 
records of the Civil Government. They were not legislative 
acts, nor acts of that Government, otherwise they would have 
been so recorded; but were proceedings of those who were 



37 

acting as Overseers or officers of the College government, consid- 
ering themselves as ex-officio and from the emergency of the 
case invested with such authority. And the appointment of 
William Hubbard as rector, which is stated in the Report as if 
it were a permanent one, was merely for the purpose of pre- 
siding upon one Commencement day, President Mather being 
absent in England ; and moreover was made by Sir Edmund 
Andros, not remarkable for his respect of personal or political 
rights. 

The dissolution of the Colonial Charter of course abolished the 
then existing Board of Overseers, created by the act of 1642, an 
essential portion of which had consisted of magistrates holding 
office only under it. But however misapprehended at the time, 
viewed in the clear light of more recent jurisprudence it did not 
vacate the College Charter of 1650 ; nor abolish the Board of 
President and Fellows who constituted the Corporation, and 
who continued to hold its franchise and estates, any more than 
such dissolution annulled any other grant made by the Colonial 
Government of lands, or other property, or privileges, liberties, 
and immunities of any sort to private individuals. 

The anarchy of opinion and confusion into which the Colony 
was thrown by the repeal of its charter, were for a time rather 
increased than diminished by the Provincial Charter of 1691, 
which radically altered the political aspect of the Government, 
and destroyed the foundation upon which the clerical dominion 
had been established and ruled with almost absolute sway. 
That charter was sufficient, both by express terms and neces- 
sary implication, to renew and confirm the College Charter, if 
such renewal or confirmation had been necessary; but which 
necessity, for the reasons above stated, did not exist. As it was 
desirable, however, if possible to save the College from the dan- 
gers with which the new form of government was supposed to 
threaten it and all the religious institutions of the Province, the 
Corporation and friends of the College immediately exerted them- 
selves to procure a new charter, which should permanently se- 
cure the College in their own exclusive possession and control, 
independently of all connection with, or interference of, the 
Government. This was the Charter of 1692, referred to in the 
Report of 1849, and which was rejected by the Crown. 

Thegovcrnmentof the College was forthwith organized under 



38 

this charter, and acted under it until its rejection in 1696. 
Upon that event being made known, Lieutenant Governor 
Stoughton assumed the responsibiUty of appointing the Presi- 
dent, Fellows, and Treasurer, named in that charter, to proceed 
in the government of the College according to its late rules, until 
the further pleasure of his Majesty should be made known, or a 
legal settlement of the College should be obtained ; all which is 
carefully entered upon the College records, and it is evident 
must have been with the concurrence and consent of those then 
representing the Corporation. Nor is any allusion to this pro- 
ceeding found upon the records of the Provincial Government 
as would have appeared, had it been considered one under its 
authority, or in the course of its administration. 

A further effort was made to obtain another charter, which 
resulted in the enactment of one by the General Court in 1697 ; 
and the members of the Corporation exerted themselves to have 
President Mather appointed to proceed to England to procure 
its ratification ; in which, however, they did not succeed. This 
charter was also rejected. Several other efforts were made by 
the members of the College Government, and its friends, for the 
procurement of other charters in 1699, and 1700, all of which 
failed; and the General Court from that period, down to the 
year 1707, conferred the government upon the persons named 
in those charters, or upon others designated for that purpose ; 
but always, as it is believed, unless the temporary appoint- 
ment of Mr. Hubbard above mentioned be an exception, upon 
the particular friends of the College, and not in opposition to 
them. 

It is manifest, however, that as all these proceedings were, in 
the understanding on both sides, that the charter of 1650 was 
vacated by the Province charter, and that the College, therefore, 
had no corporate existence, or rights ; and were also by mutual 
concurrence of the government of the Province and of those 
acting as Governors of the College, no argument can be drawn 
from them in favor of the right of the Government thus to ap- 
point, and act, or interfere with the affairs of the College, in 
contravention of the rights secured by that charter, if it was in 
truth still subsisting; nor can they be adduced as illustrative of 
any construction put upon it by the Government or Corporation ; 
nor as evidence of the admission of any such right of government 



39 

or interference. They are entirely irrelevant in any discussion 
of the constitutional rights of the College under the charter, 
being based wholly upon its assumed dissolution. 

This unfortunate and erroneous belief, of the supposed disso- 
lution of the College Charter, was happily and finally terminated 
by an act in Council in December, 1707, concurred in by the 
House of Representatives, and approved by the Governor in the 
following words, "And inasmuch as the first foundation and 
establishment of that house, and the government thereof, hath 
its original from an Act of the General Court made and passed 
in the year one thousand six hundred and fifty, which has not 
been repealed or nulled ; the President and Fellows of the said 
College are directed from time to time to regulate themselves 
according to the rules of the Constitution by the said Act pre- 
scribed, and to exercise the powers and authority thereby granted 
for the government of that house and the support thereof." 

The College government was reorganized accordingly without 
delay. A Board of Overseers was assembled at the College ac- 
cording to the charter of 1650 ; the Corporation was reduced to its 
original number of seven, including Mr. Leverett, who had been 
previously appointed President; and his instalment in the office 
took place with appropriate ceremonies, and the records, charter, 
seal, and keys were delivered to him. The Corporation thence- 
forth continued in the uninterrupted and unquestioned enjoy- 
ment of their corporate privileges, estates, and powers under 
that charter, until the dissolution of the Provincial Government 
by the revolution, and the establishment of the original consti- 
tution of the Commonwealth in 1780. 

The enactment of December, 1707, above recited, was not, as 
has been sometimes represented, a revival, a reinstatement, or 
restoration of the charter of 1650, for that had never been legally 
vacated or annulled. It was merely a declaratory Act of the 
Government of the Province, affirming its legal existence and va- 
lidity, and pledging the public faith for its inviolability to those 
who should rely upon it in the making of contracts, or the be- 
stowment of donations for the advancement of learning and 
religion, which the law holds to be in the nature of contracts. 

But if the legal validity of the charter of 1650 could be con- 
sidered as doubtful, or reasonably denied at the time of the pas- 
sage of that act, your Memorialists respectfully, and with entire 



40 

confidence, submit, that such a declaratory enactment by the 
Government in confirmation of a preexisting charter, or contract, 
passed for the purpose of rcstoriug its action, and of inducing 
officers to resume tlie duties and trusts which it created and im- 
posed, and benefactors of learmng and rehgion to bestow gifts 
upon the College for their advancement in the manner provided 
by it. and upon the faith of its binding obligation upon the 
State, would have constituted a contract between the State and 
the Corporation, and those thus contracting with it, which would 
be equivalent to the regranting of such a charter, and which no 
subsequent Legislature could repeal, or alter, without the con- 
sent of the Corporation. That a private individual, who had 
thus recognized and confirmed a grant of estates, powers, or 
privileges previously made by him to trust us for specific pur- 
poses, and thereby induced others to convey to them valuable 
property in aid of their accomphshment, without reserving the 
power of revocation, would have been thereby forever legally 
barred from denying the validity of the original grant, and its 
perpetual obligation upon him, admits of no question : and un- 
less the Provincial Government, and that succeeding it. are to be 
considered above the laws regulating the obligation of contracts, 
it is not perceived how the binding force of this act upon them 
can be reasonably questioned. 

The next events in the history of the College were the revo- 
lution, which abolished the Provincial Government, and resulted 
in the establishment of the State Government, under a written 
constitution, in 1780 : and the insertion therein of the Articles 
relating to the College to be presently considered : during which 
period of time no change was made or attempted in the College 
charter. As, however, the Board of Overseers, which had con- 
sisted in part of magistrates holding office under the Provincial 
Government, was abolished by its destruction, it became neces- 
sary for the newly created government to substitute another, in 
the same manner as the Provincial Government had done upon 
succeeding to the Colonial. But this procedure required no al- 
teration of the charter under which the Corporation was estab- 
lished ; being merely an arrangement for the exercise of that 
portion of the visitatorial power, which had never been vested 
in the Corporation : nor can it be considered a precedent for the 
exercise of such authority when such emergency did not exist. 



41 

Your Memorialists do not understand that any pretence is 
made, in any quarter, that the revolution and dissolution of the 
Provincial Governmentj and substitution of the State Govern- 
ment, vacated or in any wise affected the charter of the Col- 
lege, or any legal rights originally created by it. 

In 1810 the Legislature changed the constitution of the Board 
of Overseers by an act, which made the acceptance of it by them 
and by the members of the Corporation essential to its validity, 
and which acceptance they gave. 

In 1812 the Legislature passed an Act purporting to repeal the 
last named Act, and to restore the former constitution of the 
Board of Overseers. Against the passage of this act. the Over- 
seers and Corporation remonstrated, as being in cootraveotion of 
the chartered rights of the College ; and reserved the right to 
test its validity by appeal to the judicial tribunals. 

In 1814, and before any measures taken to try the qacstion, 
the Legislature repealed the act of 1812, and reorganized the 
Board of Overseers, by an act requiring their assent and that of 
the Corporation, which were given, and which, with an amend- 
ment made by an additional act passed in the year 1834, to go 
into operation when accepted by the Overseers and President 
and Fellows of the College, and which was accepted by them, 
now forms the Constitution of that Board. 

In 1820, when the Constitution of the Commonwealth was 
submitted to the people for amendment, a proposition was made 
for a change in the Board of Overseers, but was rejected. But 
none was suggested of any change in the charter of the College. 
And from tliat time, until the proposal of the Act under consid- 
eration, the College has been in the uninterrupted exercise of its 
powers and privileges, and in the discharge of the duties pre- 
scribed by the charter, without any effort to vary its terms or 
provisions. 

Upon a revision, therefore, of the history of the College, and 
of the Legislative Acts concerning it, we have seen, that, during 
the existence of the Colonial Government, from the date of the 
charter in 1650 to the year 1GS5, a period of thirty-five years, 
and one in which, from the nature and necessities of the times, 
the exercise of arbitrary and unconstitutional power was not 
infrequent, no one act was done by the Legislature in contra- 
vention of the Charter, or for altering its provisions, against the 
6 



42 

consent of the Corporation ; and nothing in derogation of their 
rights under it, unless the singular proceeding above recited be 
so considered, which, as before suggested, it is impossible to look 
upon as a precedent of the exercise of lawful authority. 

That, from the year 1685, when the Colonial Charter was an- 
nulled, to the year 1707, being fifteen years after the Provincial 
Charter was granted, a period of about twenty-two years, it 
was believed or assumed on all sides, that the College charter 
was abolished so that the Corporation no longer existed; and that, 
under that belief, the Government assumed authority and control 
over the College, not as exercising control over the Corporation 
created by the charter of 1650, but in a manner inconsistent 
with the idea of any existing corporate body, or corporate 
rights, for the purpose of preserving its estates and continuing 
its usefulness, but that all such acts appear to have been done 
by the concurrence of those, who were officers under the original 
charter, and of those subsequently appointed, who were the ac- 
tive friends of the institution, and anxious for its preservation ; 
and not in derogation of any rights asserted by them in its 
behalf 

That, from the year 1707, and as soon as it was determined 
that the charter of 1650 was still in existence, until the termina- 
tion of the Provincial Government in 1775, a period of about 
sixty-eight years, and one of kingly prerogative, not one change 
was attempted, nor one act done, in derogation of this charter. 

That, in 1780, the chartered rights of the College, and it had 
none but under this charter, were recognized and confirmed in 
the fullest manner in the Constitution of the Commonwealth, 
by articles which still constitute a prominent portion of it; and 
that, from the revolution in 1775, to the present time, a period 
of seventy-six years, but one effort has been made by the Leg- 
islature, supposed to aflfect the legal rights of the Corporation 
under this charter, and this was soon after redressed by legisla- 
tive enactment recognizing the necessity of its assent to any 
lawful change of that instrument. 

So that, during the whole period of two hundred years, which 
have now elapsed since this charter was granted, there has been 
but one solitary legislative Act, which in any point of view can 
be considered in derogation of the rights of the Corporation un- 
der it, and that Act continued for the space of only two years. 



43 

And it may well be supposed, that those, who were instrumen- 
tal in its passage, may have acted under the belief that an act 
affecting the constitution of the Board of Overseers only, and 
changing nothing but the mere exercise of a portion of the vis- 
itatorial power, could not be considered as infringing in any 
degree upon the rights of the Corporation, which were created 
and existed by a wholly distinct and independent charter. And 
with this, not unreasonable solution of that procedure, the Col- 
lege Charter stands for two hundred years, without any effort 
on the part of the Colonial, Provincial, Revolutionary, or State 
Governments to vary its terms, or derogate from the rights 
granted under it in any one instance. 

Upon the history, therefore, of the College and of the Legisla- 
tive proceedings concerning it, if that is to be considered as 
proof, or illustrative of the powers of the government over it, 
further comment is needless. 

In regard to the legal positions taken by the Committee, as 
exhibited in their Report, and the speech in support of it, deliv- 
ered by the Honorable Chairman, those resting upon the alleged 
rights of the State, as the founder of the College, have been 
stated; and the recital of them might be thought their sufficient 
refutation, to those conversant with the jurisprudence upon this 
subject. But their highly respectable authorship, and the con- 
fidence with which they were urged, seem to demand a more 
particular consideration. 

That the State was the founder of the College in the strict 
legal sense of the term, as having endowed it with legal exist- 
ence, is undoubtedly true; and in the same sense it is the 
founder of every incorporated institution within its boundaries. 
Nor can your Memorialists be supposed desirous to derogate in 
the slightest degree from her honor, whose reputation is as dear 
to them as it can be to any of her sons, in questioning the claim 
made by the Committee to consider her as the founder, in the 
sense in which they assert that she was, namely, as being the 
first benefactor or first giver of its revenues. It is true, that 
some eminent men and jurists have so considered and described 
her, in allusions to the history of the origin of the College, obvi- 
ously in reference to the order of 1636, by which the Colonial 
Government agreed to give four hundred pounds for its estab- 
lishment; and not probably knowing, that this agreement was 



44 

never specifically fulfilled; or, if so, not until after the donation 
of Mr. Harvard had been made, and expended as the first 
means of establishing and erecting the edifice of the College. It 
is obvious that the mere entry of such an order upon the records 
of the Colony formed no contract with any one, for no other 
party was in existence with whom such a contract could be 
made. It was merely a legislative resolve of what was expedi- 
ent to be done for the public good ; and which, while it proves 
the liberal and enlightened policy of its authors, might have 
been at any time with perfect right and justice revoked by 
them, without cause of complaint to any one. At the time of 
the bequest of John Harvard it was nothing more than an un- 
executed resolve, of great, and perhaps of vital importance to 
the establishment of the College, as an assurance of public fa- 
vor and support, and thereby inducing private individuals to 
endow it; but still not an actual gift, by which the College ac- 
quired any absolute estate, or fund, or means of subsistence. 
And history shows, that the first gift of this character, actually 
made, and which was sufficient to secure its immediate estab- 
lishment, was that of John Harvard. 

Undrr these circumstances, and under the sanction of the 
contemporaneous legislation of those who passed that resolve, 
and who so emphatically declared their understanding that he 
should be considered the founder by immediately bestowing 
upon the institution his name, and who, eleven years afterwards 
in a public memorial, declared him to be the principal founder, 
your Memorialists respectfully sgbmit, that he is to be consider- 
ed the founder, or first giver of its revenues; and that, in so far 
as this consideration may be of any moment, the founder was a 
private individual, and not the State. 

But although the Memorialists deem it proper thus to set 
forth the claims of this good man and chief benefactor in the 
cause of learning, at the first establishment of the Common- 
wealth, to be considered the founder of the College, in justice to 
his good name and the cause of truth, yet in their judgment it 
is of no mom.ent in the consideration of the legal question be- 
fore the Honorable House, inasmuch as if it were conceded, that 
the State was the founder, in the manner supposed by the Com- 
mittee, that circumstance would not import any power in the 
Legislature to enact this bill. 



45 

The inferences deduced from this supposed relation of the 
State to the College, that the State as such founder has legisla- 
tive power to make all needful statutes for the government of 
the College, visitatorial and judicial power over its officers and 
administration, and power to prescribe the statutes of its foun- 
dation, and from time to time to alter the same, provided it does 
not impair the vested rights of any person, are, as your Memo- 
rialists humbly conceive, errors occasioned by confounding the 
original right of a founder of a charity to prescribe the terms 
and tenure of the grant establishing it, with those which may 
remain in him after its execution, and an acceptance of it by the 
grantees. 

The general proposition of law, upon which these claims are 
understood to rest, is, that the State has the right to enact this 
bill, as founder of the College, possessing all power necessary 
for that purpose by virtue of that relation alone. 

There is no doubt that the founder of a charity has the right 
in its creation to prescribe the terms and tenure upon which it 
shall be held, and the statutes by which it shall be governed, 
and to reserve the power of altering them from time to time ; as 
also general legislative and judicial authority over the trustees, 
with power of removal and substitution, provided that such 
terms, tenure, and reservations be not repugnant to the general 
law. Nor can it be doubted that, if the grant be general in its 
terms, for the purposes of the charity, without prescribing any 
terms upon which it shall be held and managed, such general 
legislative and judicial power will remain in the founder, to be 
exercised at his pleasure; nor that, if the whole tenure and 
government are not granted to the trustees or other persons, the 
portion not thus parted with will remain in him. And any 
power thus expressly or tacitly reserved in the founder is called 
visitatorial, and may remain in him, or be at any time granted 
to other persons ; and it constitutes a valuable estate, or proper- 
ty, recognized as such in Courts of Law and Equity. 

But it is no less clear, that if, by the terms or nature of the 
grant, the founder has prescribed the tenure upon which the 
trust shall be holden, and the rights, powers, and duties of the 
trustees in the administration and perpetuation of it, and of 
those for whose benefit it shall be maintained, and has commit- 
ted its entire management and government to the trustees solely, 



46 

or in connection with other persons, without reservation of any 
right to vary such tenure, terms, rights, powers, duties, govern- 
ment, or beneficial interest; and the grantees have accepted the 
grant, and entered upon the administration of the trusts; the 
founder has thenceforth no legal power, or right whatsoever, to 
revoke or aUer the grant, or any power, duty, trust, interest, lib- 
erty, or estate created under it, or to interfere or intermeddle 
therewith, any more tlian would have any entire stranger to it; 
and tliat, where the whole right of government and perpetuation 
is vested in the trustees alone, no visitatorial power whatso- 
ever remains in the founder ; and none exists anywhere, except- 
ing that which is common to the State over all eleemosynary 
institutions, under the general laws relating to them, to examine 
by its judicial tribunals whether the true objects of the charity 
have been kept in view and faithfully pursued, and its funds 
rightly administered. 

In such case the grant is an executed contract between the 
founder and the grantees, at]d those for whose benefit it is made, 
which he can neither rescind, nor vary, nor impugn, without 
the consent of all. 

These are now established elementary principles of law upon 
this subject, admitting of no reasonable question ; and they can- 
not be subverted or violated without hazarding the destruction 
of all the charitable institutions within the Commonwealth, and 
forever shutting off those streams of benevolence and enlight- 
ened liberality by which the wants of learning and science, 
and of suffering humanity, are now chiefly supplied. 

In order, therefore, to ascertain whether the State (admitting 
it, for the purpose of this inquiry, to be the founder.) possesses 
the power to pass this Bill, resort must be had to the giant con- 
tained in the charter, to determine whether it w^as thereby re- 
served, or remained in the State, because not expressly parted 
with. 

Its provisions have been recited above, and by them it appears 
that the State did part with all the power, w^hich it might other- 
wnse have retained as founder, of making the change in the organ- 
ization and government of the Corporation now proposed. The 
charter was an express grant to seven persons therein named, as 
President, Fellows, and Treasurer of the Corporation, of all the 
privileges, liberties and immunities of the Corporation in per- 



47 

petual succession, and gave to them the sole power of appoint- 
ing their successors forever, subject only to confirniation or 
rejection by the Overseers. It granted to them and their suc- 
cessors so appointed the right to acquire and hold all the real 
and personal estates of the Corporation, to the use of themselves 
and the scholars of the College. It gave to them the sole power 
of appointing all the officers and servants of the College, and 
vested in them the exclusive right of enacting rules and laws 
for its government, and of administering them, subject only to 
the approval or disapproval of such appointments, rules, and 
laws, by the Overseers. In short, the State, by this charter, en- 
tirely divested itself of all power thenceforth over the College, 
visitatorial, or of any other description, and granted it wholly 
to the Corporation and Overseers, unless the Overseers are to 
be esteemed the mere agents or representatives of the State, 
in the exercise of that portion of visitatorial power reserved to 
them, subject to such alterations of the Board as the Legislature 
may see fit to make ; in which case such portion might be con- 
sidered as reserved to the State ; but it falls far short of any 
power to authorize the enactment of the proposed Bill ; and can 
by no possibility extend further than the modification of the 
agency, which is to exercise this power of confirmation. 

But the legal nature and effect of such a charter do not rest 
upon these elementary principles of law, however generally 
recognized, but are established by the highest judicial authority 
known in this country, which has decided that such a charter 
constitutes a contract between the State and the Corporation 
created by it, and those entitled to beneficial interests under it, 
and those who shall have bestowed their bounty under it, and 
those in possession of its franchise and estates, sacred and invi- 
olable ; and which the State has no legal power to revoke, alter, 
or impair, without their consent, and the consent of all, of whom 
the holders of the franchise are the lawful representatives. 

Another view, however, has been taken upon this subject, 
which your Memorialists are compelled to submit for considera- 
tion, for the reason that, although not alluded to in the Report of 
the Committee, it forms a prominent topic in the speech deliv- 
ered by the Honorable Chairman in support of it, and must 
therefore be considered one of the positions relied upon in 



48 

recommending the passage of the Bill, and upon which the 
power to enact it is supposed to rest. 

It is said that Harvard College is a public Corporation belong- 
ing to the State, that the corporators are merely servants or 
agents of the State, and that there is no contract under the 
charter, because the State is the only party having any interest, 
and no one has authority to appear to contest her rights. It is 
true that, in asserting the unlimited power which would seem 
necessarily to follow from such premises, the proviso was added, 
that its exercise could not extend to the confiscation or misappli- 
cation of the funds of the College. But such proviso is plainly 
inconsistent with Avhat must be the inevitable legal conclusion 
from the positions taken, if they are sound, and is therefore a 
virtual surrender of them, if it means anything. 

The whole basis of this position is stated to be the circum- 
stance that the State was the founder of the College. It was 
expressly conceded that, if John Harvard was the first bene- 
factor, or founder, the College would be a private Corporation, 
and the Legislature would have no constitutional power to pass 
this Bill. But it is alleged that, as the State was the founder by 
the gift of the public money, this is a public charity, and the 
College is a public Corporation, and therefore entirely at the con- 
trol and disposal of the Government. 

Your Memorialists are unable to find any authority for such 
conclusions, in any principles of law or judicial precedent with 
which they are conversant ; but are constrained to consider them 
alike inconsistent with both. 

In one sense, indeed, all Corporations established for charita- 
ble purposes, to the benefits of which the public are entitled, 
upon or without prescribed terms, are denominated public, as 
are many others in which the public are interested ; but all of 
which, legally considered, are strictly private. 

In correct legal description, those only are public corporations 
which are founded by the Government for political or public 
purposes, where the whole interests and franchises are of the 
exclusive property and domain of the GovernmaCnt itself, as incor- 
porated cities, counties, and the like. But all eleemosynary cor- 
porations, such as Colleges, Hospitals, and similar institutions, 
holding property in their own right, with power to dispose of it 



49 

for the purposes prescribed by their charters, under the control 
and management of their officers, are private Corporations, from 
whatever sources they may have derived their funds. 

Public corporations, properly speaking, are for the purposes 
of civil government or political arrangement, and are of course 
under the control and subject to the will of the government thus 
creating them for its own purposes. But eleemosynary corpo- 
rations, for the purposes of education, or relief of individual 
suffering, by the administration of funds belonging exclusively 
to themselves, in the manner pointed out by their charters, are 
private. The tenure of their property, and the right of admin- 
istering it, are. in the strictest sense of the law, private. The 
members of such corporations have private rights and privi- 
leges. They have the sole right of possession of the corporate 
funds. They have the exclusive right of administering them, 
and the power of governing, ordaining rules, and appointing 
officers and servants, if it has not been reserved or given else- 
where. These are all clear, distinctly recognized private legal 
rights, in the enjoyment of which the corporations and their in- 
dividual members have a right to the protection of the law, and 
from any violation of which the law furnishes specific remedies. 
In the language of an eminent jurist, •' the privilege of being a 
member of a corporation under a lawful grant, and of exercising 
the rights and powers of such membership, is such a privilege, 
liberty, and franchise, as has been the subject of legal interest 
from the time of Magna Charta to the present moment." Every 
member of such corporation has a franchise; it is his private 
right ; and he may have an action at law against any one who 
may disturb him in the enjoyment of it. 

The very purpose of a charter establishing an eleemosynary 
corporation, and bestowing property upon it, is to make and 
keep it private property, with all the security and inviolability 
incident to such tenure. The obvious purpose of this charter 
was to divest the Colony of the funds, which it then held for the 
benefit of the College, and to establish a legal private ownership 
in the Corporation, who, by exercise of the powers granted, 
might hold and protect it, and all that should thereafter be given 
to them, for the exclusive benefit of those for wiiose use it was 
designed. No terms more explicit and unequivocal of such in- 
tention can be devised, than those contained in this instrument, 
7 



50 

which declares that all property received or acquired under it 
shall be " holden to the use and behoof of the said President 
and Fellows, and the scholars of said College." 

The President. Professors, and Tutors hold their offices under 
the appointment of the President and Fellows, and in the first 
instance are accountable to none else, and can be removed by 
no one else. They accepted their offices by this tenure, and 
have corresponding private legal rights. The Corporation is the 
trustee of the private rights of all the benefactors of the College, 
and under contracts with them for the faithful administration of 
their bounty ; and trustee^ also, of the beneficial interests of the 
scholars, who have no other representative or protector thereof. 

By the eloquent recital in the charter, inviting and inducing 
patrons of learning and religion to bestow gifts upon this insti- 
tution for their advancement, and by the provisions subse- 
quently set forth to assure them of its safe keeping and proper 
administration, there arose an implied contract, on the part of 
the Government, with every benefactor, that, if he would give 
his money, it should be deemed a charity protected by the char- 
ter, to be administered by the Corporation, according to the gen- 
eral law of the land. As soon, then, as a donation was made 
to the Corporation, there was an implied contract, springing up 
and founded on a valuable consideration, that the State would 
not revoke or alter the charter, or change its administration 
without the consent of the Corporation. The Government, by 
thus inducing benefactors to endow the College, have contracted 
to give perpetuity to their benevolence, in this form, and in this 
stipulated manner of exercising it. And they have correspond- 
ing private rights, 

A grant by the State, with or without consideration of any 
property, right, liberty, or franchise, is as binding and irrevoca- 
ble as a similar one made by an individual; and the tenure and 
rights of the grantee are determined by the terms and declared 
purposes of the grant, without reference to the character of its 
author. 

A state may dispose of its property for charitable purposes, as 
well as for those of any other nature for which the grantee may 
desire or take them; but, when it has been thus disposed of, the 
state ceases to be the owner, and the grantee becomes such in 



51 

its place, and with no other accountabihty than that reserved or 
created by the grant. 

The position taken, that, because the State makes the first 
donation for the establishment of an eleemosynary corporation — 
which, by the express terms of its charter, is expected to depend 
chiefly npon private endowments, and which is vested with ab- 
solute power to receive and hold them exclusively to its own 
use, for the purposes of its creation — it thereby becomes a public 
Corporation, a mere servant or agent of the public ; and that all 
its funds, however acquired, thus become public property, in 
which no one but the State has any interest, and that it has no 
legal rights against the State; — is one which your Memorialists 
cannot fear will find any favor with the Legislature or people 
of this Commonwealth. And, on this point, they have only to 
add, that, if doubt could otherwise exist upon it, they are sus- 
tained by the judicial authority of one of the most eminent 
jurists of this or any other country, in a recent decision, as well 
as by other authority coeval with the date of the charter. 

The remaining ground, upon which the assertion of lawful 
power in the Legislature to enact this bill rests, is the proviso at 
the close of the third article in the Fifth Chapter of the Constitu- 
tion ; to a correct understanding of which, a recital of the three 
articles is necessary. They are as follows :— - 

" Art. L Whereas our wise and pious ancestors, so early as 
the year 1636, laid the foundation of Harvard College, in which 
University many persons of great eminence have, by the blessing 
of God, been initiated in those arts and sciences which qualified 
them for public employments, both in Church and State ; and 
whereas the encouragement of arts and sciences and all good 
literature tends to the honor of God, the advantage of the 
Christian Religion, and the great benefit of this and the other 
United States of America; it is declared that the President and 
Fellows of Harvard College in their corporate capacity, and 
their successors in that capacity, their oflicers and servants, 
shall have, hold, use, exercise and enjoy all the powers, author- 
ities, rights, liberties, privileges, immunities, and franchises, 
which they now have, or are entitled to have, hold, use, exer- 
cise and enjoy ; and the same are hereby ratified and confirmed 



52 

unto them, the said President and Fellows of Harvard College 
and to their successors, and to their officers and servants respect- 
ively forever. 

" Art. 2. And whereas there have been at sundry times, by- 
divers persons, gifts, grants, devises of houses, lands, tenements, 
goods, chattels, legacies, and conveyances, heretofore made 
eitlier to Harvard College in Cambridge in New England, or to 
the President and Fellows of Harvard College, or to the said 
College by some other description, under several Charters succes- 
sively, it is declared, that all the said gifts, grants, devises, leg- 
acies and conveyances are hereby forever confirmed unto the 
President and Fellows of Harvard College, and to their succes- 
sors in the capacity aforesaid, according to the true intent and 
meaning of the donor or donors, grantor or grantors, devisor or 
devisors. 

Art. 3. And Avhereas, by an act of the General Court of the 
Colony of Masssachusetts Bay, passed in the year one thousand 
six hundred and forty-two, the Governor and deputy Governor 
for the time being, and all the magistrates of that jurisdiction, 
were, with the President and a number of the clergy in the said 
act described, constituted the Overseers of Harvard College ; 
and it being necessary in this new Constitution to ascertain w^ho 
shall be deemed successors to the said Governor, deputy Gover- 
nor, and magistrates ; it is declared, that the Governor, Lieuten- 
ant Governor, Council and Senate of this Commonwealth are and 
shall be deemed their successors ; who, with the President of 
Harvard College for the time being, together with the ministers 
of the Congregational Churches in the towns of Cambridge, 
Watertown, Charlestown, Boston, Roxbury, and Dorchester, 
mentioned in the said Act, shall be and hereby are vested with 
all the powers and authority belonging or in any way apper- 
taining to the Overseers of Harvard College ; 'provided^ that 
nothing herein shall be construed to prevent the Legislature of 
this Commonwealth from making such alterations in the Gov- 
ernment of the said University, as shall be conducive to its ad- 
vantage and the interest of the republic of letters, in as full a 
manner as might have been done by the Legislature of the late 
Province of Massachusetts Bay." 

It is to be observed that the first two articles relate exclusively 



53 

to the Corporation, consisting of the President and Fellows of the 
College, and contain a full and emphatic recognition and con- 
firmation, to them and their successors forever, of all their pow- 
ers, authorities, rights, privileges, immunities, and franchises, 
and of all the estates vested in them by virtue of conveyances, 
gifts, or devises, at any time theretofore made; and that the 
third Article relates exclusively to the Board of Overseers, v/hich 
it was necessary to reorganize and reconstruct, by reason of the 
substitution of the State for that of the Provincial Government ; 
unless the proviso at its close is to be construed as extending 
also to the first and second articles. And further, that, at the 
time of the adoption of the Constitution, the only charter under 
which the Corporation was organized and acting was that of 
1650. 

The first two articles were prepared by the Corporation, and 
approved by the Overseers, and by their concurrent action pre- 
sented to the Convention then preparing the Constitution, and 
were adopted without amendment. The third originated in the 
Convention. 

In order to establish the power of the liCgislature to pass the 
proposed bill, as resting upon that proviso, it is obviously neces- 
sary to show that the Provincial Legislature possessed constitu- 
tional authority to abolish or alter the Charter of the College at 
pleasure, as it might from time to time think expedient. 

Of the existence of such authority, as founded in the princi- 
ples of law, the Memorialists think it needless to make any fur- 
ther suggestions. The Committee, however, seem to rely greatly 
upon the legislation of the Province, as evidence that such au- 
thority did exist, and refer to the history of it, as contained in 
the Report of 1849, for that purpose. 

Without further comment upon the principle substantially put 
forth by both Committees, that legislative action is conclusive 
proof of constitutional power, than merely to express the dissent 
of your Memorialists from the doctrine, in which their concur- 
rence might be otherwise inferred, they respectfully submit that 
the history of the legislation of the Province, in relation to Har- 
vard College, affords no pretence for maintaining that its Legis- 
lature ever exercised or claimed any right to rescind, alter, or 
impair its Charter, or to do anything in derogation of the pow- 
ers, privileges, or immunities claimed by the Corporation under 



54 

it; but, on the contrary, that, so far as any inference is to be 
drawn from snch history, it is decisive against any snch claim. 

By that Iiistory it is found that, after the irregularities that 
had taken place in consequence of the repeal of the Colonial 
Charter, and by reason of the temporary misapprehension that 
the College Charter was also thereby annulled, and in which 
mistake and irregularities both the Legislature and the Corpora- 
lion were parties, acting in mutual and friendly concert, the 
Legislature, upon revision of the subject, and for the purpose of 
a permanent correction of the error, and of terminating such 
proceedings forever, passed the solemn declaratory enactment of 
1707, above recited; recognizing the Charter of 1650 as being 
in full force, and as not having been repealed or annulled ; and 
directing the President and Fellows to regulate themselves ac- 
cording to its rules, and to exercise the powers and authority 
thereby granted. And that, in pursuance of that enactment, 
the Corporation was reorganized under that charter, by the Ex- 
ecutive, with grave formalities, expressive of the sense enter- 
tained by the government of its importance, and the rights of 
the Corporation under it. This order of things continued during 
the remaining existence of that government, a period of nearly 
seventy years, without a single act, vote, or resolution, by the 
Legislature, tending in the slightest degree to alter or impair the 
charter, or to indicate the least claim on the part of the Govern- 
ment to do so. 

And your Memorialists respectfully suggest,' that, when it is 
remembered that in the period which had intervened between 
the vacation of the Colonial Charter and the date of this enact- 
ment, the Provincial Legislature had created several new char- 
ters, and which, if lawfully enacted, must for the time being 
have virtually repealed that of 1650, being of legal operation 
and effect until disallowed by the Crown ; this act was, in ef- 
fect, a disavowal of their legal authority to create those charters, 
and an express recognition of the inviolability of that of 1650. 

But, in whatever other light this act may be viewed, it cer- 
tainly removes any pretence that otherwise might be made for 
construing the preceding legislation, in reference to the College, 
as founded upon any claim of power to alter or impair the Char- 
ter of 1650 ; and no such claim can exist, derived from any sub- 
sequent proceedings of the Provincial Legislature. 



55 

Upon this point your Memorialists have only to add, that, 
upon inspection of this Chapter of the Constitution and appli- 
cation of the ordinary rules of legal construction, they believe 
that the proviso in question should be confined entirely to the 
third Article, of which it forms a portion. 

That Article created and relates to a supervising body entirely 
distinct from and independent of the Corporation of the College, 
the construction and organization of which, being dependent 
upon the form of government for the time being, had undergone 
changes corresponding with those which had taken place in the 
political constitution of the State, and which would necessarily 
become in like manner subject to alteration, conforming with 
any which might subsequently occur. Such a proviso, there- 
fore, in reference to a body which had been the subject of pre- 
vious legislative alteration, might be of very reasonable and 
natural adoption. And the circumstance that it forms a portion 
of the whole and single paragraph relating to the Board of 
Overseers only, without the intervention of a period, and separ- 
ated from other portions only in the same manner in which all 
are separated each from the others, is not unworthy of consid- 
eration in a question of legal construction of a written instrument. 
And, as has on another occasion been stated, the annexation of 
this proviso to the first and second Articles, if it is supposed to 
contain or imply power to take away, alter, or impair the char- 
tered rights, liberties, immunities, and franchises therein enu- 
merated, would be to render those articles little if anything 
better than idle words. 

Your Memorialists have forborne reference toother legislative 
proceedings, which would tend, in their judgment, to confirm 
them in the position which they have thus taken, being satisfied 
to rest them upon acknowledged principles, and the history of 
the proceedings of the Colonial, Provincial, and State Govern- 
ments, above set forth. 

In conclusion, your Memorialists trust that, in discharging 
their duty to the College in this plain statement of their under- 
standing of its rights and interests, they have said nothing that 
will be thought inconsistent with the respect they entertain for 
the Honorable House, or that deference to any opinion which it 
may entertain in regard to the government of an important in- 
stitution committed to their care, in which they have no interest 



56 



other than that in common with all lovers of learnmg and sci- 
ence throughout the Commonwealth. 

All which is respectfully submitted. 

JARED SPARKS, President. 
LEMUEL SHAW, 
JAMES WALKER, 
CHARLRS G. LORL\G, 
B. R. CURTIS, 
SAMUEL A. ELIOT. 
January lAth, 1851. 



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